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COMMONWEALTH EX REL. FIRMSTONE v. MYERS (10/03/68)

decided: October 3, 1968.

COMMONWEALTH EX REL. FIRMSTONE, APPELLANT,
v.
MYERS



Appeal from order of Superior Court, Oct. T., 1967, No. 995, affirming order of Court of Common Pleas of Lycoming County, Nov. T., 1965, No. 572, in case of Commonwealth ex rel. Nathaniel Firmstone v. David N. Myers, Superintendent.

COUNSEL

Nathaniel firmstone, appellant, in propria persona.

Henry G. Hager, 3rd, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno joins in this dissenting Opinion.

Author: Roberts

[ 431 Pa. Page 630]

In 1951 appellant Nathaniel Firmstone was charged on two bills with the crimes of burglary and larceny (Bill No. 26, December Sessions, 1951), and aggravated assault and battery and robbery with an accomplice (Bill No. 27, December Sessions, 1951). He was tried and convicted on Bill No. 26, plead guilty to the charges on Bill No. 27, and was given consecutive sentences of ten to twenty years on each bill. These sentences were later vacated and appellant sentenced to life imprisonment under the Act of June 24, 1939, P. L. 872, § 1108(b), 18 P.S. § 5108(b). In 1964 a petition for habeas corpus was granted revoking the life sentence; appellant was then resentenced, receiving consecutive sentences of six to twelve years on Bill No. 27 (the guilty plea) and six to twenty years on Bill No. 26 (the trial).

Next, appellant commenced the present action in habeas corpus in which he attacked both convictions. Following an evidentiary hearing, the Court of Common Pleas of Lycoming County dismissed the petition. Firmstone appealed to the Superior Court, contesting only the conviction on Bill No. 26. That court affirmed, per curiam, Judge Hoffman filing a dissenting opinion joined by Judge Spaulding. Commonwealth ex rel. Firmstone v. Myers, 211 Pa. Superior Ct. 496, 240 A.2d 393 (1968). We granted allocatur.

It is uncontested that prior to his trial on Bill No. 26, appellant was given a preliminary hearing at which time he was unrepresented by counsel. Moreover, he was never told anything about the right to counsel. At the hearing, appellant entered a plea of guilty. Although this plea was later withdrawn, the Commonwealth at trial introduced appellant's uncounseled guilty plea in direct violation of White v. Maryland, 373 U.S. 59,

[ 431 Pa. Page 63183]

S. Ct. 1050 (1963).*fn1 Thus, the sole issue in this case is whether White is to be given retroactive effect. Both the hearing court and the Superior Court held that White applies only to trials commenced after the date of that Supreme Court decision. We reverse and grant appellant a new trial.

No responsible pronouncement on the retroactivity vel non of White can be made without first examining the case on which White relies so heavily, Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961). In holding that petitioner in Hamilton was entitled to counsel at his arraignment, the Supreme Court noted that an Alabama arraignment, per se, was always a "critical stage" requiring the assistance of counsel because, under Alabama law, certain defenses must be raised at the arraignment or be forever unavailable to the defendant. The crucial fact in Hamilton however was not that petitioner was without counsel at an arraignment, but rather that he was without counsel at an arraignment which was a critical stage in the criminal proceeding. Of course, the Court in Hamilton did not have to face the issue of whether an arraignment or preliminary hearing could amount to something less than a "critical stage."*fn2

[ 431 Pa. Page 632]

The Supreme Court came closer to facing this question in White itself. Unlike Alabama, there was no rule in Maryland that would make every preliminary hearing a critical stage. However, the Supreme Court did hold that the particular hearing in White was critical because, just as in the present case, an uncounseled defendant entered a plea of guilty at the preliminary hearing which was later withdrawn, yet still introduced into evidence at trial. In so ...


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